CONTRACT BETWEEN USRC AND CONTRACTOR
The following sets forth the basic information concerning the Contract between USRC and
Contractor which follows. This page is referred to as the "Cover Page".
Project:
Contracting
Party:
Pedestrian Enhancements – Union Station Parking Garage, Washington, D.C.
Union Station Redevelopment Corporation (“USRC”)
10 G Street NE, Suite 504
Washington, D.C. 20002
Attention: Nzinga Baker (nbaker@usrcdc.com)
Phone: 202.222.0271
Contractor:
Contract Date:
, 2014
Contract Price: Contractor’s Compensation is set forth on Exhibit E attached hereto.
Contract Work
and Schedule: The Scope of Work (the “Contract Work”) is set forth on Exhibit D attached hereto. The
Contract Schedule is set forth on Exhibit F attached hereto.
Exhibits:
Exhibit A – Required Insurance
Exhibit B – Request for Proposals
Exhibit C - Contractor’s Proposal
Exhibit D - Scope of Work (the “Contract Work”)
Exhibit E – Contractor’s Compensation
Exhibit F – Contract Schedule
1
This CONTRACT (“Contract”) is made as of the __ day of _______________, 2014 by and
between UNION STATION REDEVELOPMENT CORPORATION (“USRC”), a District of
Columbia non-profit organization, created pursuant to the Union Station Redevelopment Act of
1981 and having its usual place of business at 10 G Street NE, Suite 504, Washington, DC,
20002, and ________________________________(“Contractor”), a ____________________,
having its principal place of business at ___________________________________________,
each being a “Party” and together collectively, the “Parties”.
WHEREAS, USRC is the lessee from the United States Government, acting through the
Federal Railroad Administration, of Union Station in Washington, D.C.; and
WHEREAS, USRC partnered with the District of Columbia Department of
Transportation (“DDOT”) to apply for a matching grant from the Transportation Alternatives
(TA) program of the Federal-Aid Highway Program to provide funding for certain design-build
services for a variety of enhancements to the Pedestrian Walkway on the Bus Deck of the Union
Station Parking Garage; and
WHEREAS, a grant of $354,000 was awarded to DDOT with USRC providing a 20%
match of $89,000; and
WHEREAS, in furtherance of this Project, on ________________, 2014, USRC issued a
Request for Proposals (the “RFP”) seeking proposals from qualified firms with expertise in
design-build services, which RFP is attached hereto as Exhibit B and made a part hereof; and
WHEREAS, in response to the RFP, Contractor submitted its Proposal, dated
____________, 2014 (the “Proposal”), which Proposal is attached hereto as Exhibit C and made
a part hereof; and
WHEREAS, after evaluation of the proposals submitted, Contractor has been selected by
USRC to provide the required services; and
WHEREAS, USRC and Contractor desire to set forth their understandings concerning
the Contract Work.
NOW, THEREFORE, in consideration of the mutual promises and terms contained
herein, the parties do hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1
Applicable Law means all federal, state, local, municipal and District of Columbia
statutes, regulations, rules, ordinances, directives, codes, orders, decrees or government
authorizations applicable in any way to the Contract Work or to the individuals or entities
performing any part of the Contract Work.
1.2
Claim means a demand by a Party for the payment of a sum of money or other
relief based upon the terms of this Contract. The term shall also include other disputes or
controversies between the Parties that may arise out of, or relate to, this Contract or the terms
thereof.
1.3
Documents means all communications, reports, statements, presentations,
drawings, schematics, renderings, illustrations or specifications, captured in any written, graphic,
tangible, digital or electronic form whatsoever, including any copies thereof.
1.4
Licenses and Permits means any registrations, licenses, certifications, permits,
approvals or professional credentials applicable to the Contract Work or to the individuals or
entities performing any part of the Contract Work.
ARTICLE 2
CONTRACTOR OBLIGATIONS AND WARRANTIES
2.1
Contractor Qualifications and Warranties. Contractor represents and warrants to
USRC that it is an experienced design-build firm and that it has the expertise to perform each
and every service comprising the Contract Work. Contractor will use qualified personnel and
suitable equipment and materials to perform the Contract Work. In performing the Contract
Work, Contractor will also comply with all the terms and conditions of the RFP and the
Contractor’s Proposal (Exhibits B and C, respectively). Contractor warrants, represents and
agrees that the Contract Work will conform in all respects to the requirements of this Contract
and all Exhibits thereto; that such Contract Work will be free from defects; and that Contract
Work failing to so conform will be considered defective. Contractor shall comply with Section
2.14 of the RFP regarding requirements for the substitution by Contractor of key team members
during the Term of this Contract.
2.2
Contractor Licenses and Permits. Contractor shall obtain, at Contractor’s own
expense, all Licenses and Permits required by Applicable Law before or in connection with its
performance of the Contract Work and shall maintain such Licenses and Permits throughout the
Contract Term, as defined below in Article 6. Contractor shall ensure that each individual or
entity employed or subcontracted to perform any part of Contractor’s obligations hereunder
maintains all applicable Licenses and Permits throughout the Contract Term. Before the
commencement of the Contract Work and at any time during the Contract Term, USRC shall
have the right to inspect and obtain copies of all such Licenses and Permits. Contractor shall
retain copies of all such Licenses and Permits in compliance with Section 11.2.
2.3
Contractor Compliance with Applicable Law. Contractor and its employees and
representatives shall at all times comply with Applicable Law. If any discrepancy or
inconsistency should be discovered between the equipment, facilities or services described in
Contractor’s Proposal, on the one hand, and Applicable Law, on the other hand, Contractor shall
immediately notify USRC of such discrepancy or inconsistency and shall comply with any
orders or instructions issued by USRC.
2.4
Violations of Applicable Law, License or Permit. Contractor will notify USRC in
writing (a) if Contractor receives a notice of violation of any Applicable Law; (b) of any failure
to obtain or maintain any License or Permit or actual or threatened revocation of a License or
Permit; or (c) if a claim is made or litigation is commenced against Contractor that could affect
the performance of the Contract Work.
2.5
Contractor to Avoid Injury or Damage. Contractor will at all times perform the
Contract Work in a manner to avoid the risk of injury to persons and damage to property.
Contractor acknowledges that its employees and representatives have visited the areas in and
around Union Station (50 Massachusetts Ave., NE, Washington, DC 20002) and the adjoining
parking garage where some of the Contract Work will be performed (the “Job Site”) and are
familiar with all Job Site conditions that might affect the performance of the Contract Work.
2.6
Debris Removal; Access. When Contractor performs work at the Job Site, it shall
be part of the Contract Work that Contractor continuously clean the Job Site of any debris and
excess materials and, at the end of each day, leave its working areas in broom-clean condition. If
Contractor fails to do so, USRC may perform, or have performed, any cleanup and shall either
(a) be reimbursed by Contractor within ten (10) business days following Contractor’s receipt of
an invoice, or (b) deduct the cost thereof from amounts otherwise payable to Contractor.
Contractor shall also ensure that the Contract Work, at all times, is performed in a manner that
affords reasonable access, for both vehicles and pedestrians, to the Job Site and all adjacent
areas.
2.7
Contractor’s Financial Responsibility. Contractor represents and warrants that
Contractor and its subcontractors are financially solvent, able to pay all debts as they mature and
possessed of sufficient working capital to complete the Contract Work and perform all
obligations hereunder. During the Term of this Contract, the Contractor shall have a Certificate
of Good Standing with the District of Columbia Department of Consumer and Regulatory
Affairs or the Office of Tax and Revenue. Contractor shall obtain all performance and other
bonds required by Applicable Law and all Required Insurance Coverages as specified in Exhibit
A attached hereto.
2.8
Contractor Oversight of Subcontractors and Sub-subcontractors. Contractor
agrees to require its subcontractors and sub-subcontractors to indemnify and hold harmless
USRC to the same extent that Contractor is required to indemnify and hold harmless USRC.
Contractor hereby assumes responsibility for ensuring that its subcontractors and their respective
sub-subcontractors comply during and after the Contract Term with the Insurance Obligations of
Contractor as set forth in Exhibit A attached hereto.
ARTICLE 3
TIME FOR COMPLETION, TIME EXTENSIONS AND DELAYS
3.1
Commencement of the Contract Work. Contractor shall hold a kickoff meeting
within three (3) calendar days after it receives notice to proceed from USRC, which notice shall
be given in the manner prescribed by Section 11.7.
3.2
Time is of the Essence. Time is of the essence for the completion of the Contract
Work. Contractor agrees that it will not interrupt or delay the Contract Work because of any
dispute with USRC, but will continue to perform the Contract Work diligently to completion,
and will later negotiate in good faith for settlement of the dispute, provided USRC continues to
pay Contractor for services undisputed by USRC.
3.3
Adherence to the Schedule. Contractor shall strictly adhere to the schedule for the
Contract Work as the same is set forth in Exhibit F attached hereto and made a part hereof (the
“Schedule”). Deviations from the Schedule shall be promptly reported to USRC. Contractor
shall be obligated to coordinate the Contract Work under the Schedule with the work being
performed by other contractors and subcontractors in the vicinity of the Project, as applicable.
3.4
Time Extensions. Time Extensions will be granted only for excusable delays that
arise from unforeseeable causes beyond the control and without the fault or negligence of the
Contractor, including, but not limited to, acts of God, acts of the public enemy, acts of any
governmental authority, fires, floods, epidemics, quarantine restrictions, strikes, freight
embargoes or delays of subcontractors or suppliers arising from unforeseeable causes beyond the
control and without the fault or negligence of either the Contractor or its subcontractors or
suppliers.
3.5
Delays. Notwithstanding anything in this Contract to the contrary, an extension
of time for performance of the Contract Work shall be the sole remedy of the Contractor for any
(i) delay in the commencement, prosecution or completion of the Contract Work attributable to
adverse weather conditions; (ii) hindrance or obstruction in the performance of the Contract
Work; (iii) loss of productivity; or (iv) other similar claims (collectively referred to as “Delays”)
whether or not such Delays are foreseeable unless a Delay is caused by the acts of USRC
constituting active interference with the Contractor’s performance of the Contract Work, and
only to the extent such acts continue after the Contractor furnishes USRC with notice of such
interference. In no event shall the Contractor be entitled to any compensation or recovery of any
damages in connection with any Delay attributable to adverse weather conditions, including,
without limitation, consequential damages, lost opportunity costs, impact damages or similar
remunerations. USRC’s exercise of any of it rights or remedies under this Contract shall not be
construed as active interference with the Contractor’s performance of the Contract Work. Any
Claim for an extension of time shall be made by Contractor to USRC not more than ten (10)
calendar days after commencement of the event giving rise to the Delay; otherwise, the Claim
shall be waived; provided, however, that in the case of a continuing Delay, only one Claim to
USRC is necessary.
ARTICLE 4
CHANGES; DIFFERING SITE CONDITIONS; STOP WORK ORDERS
4.1
Contract Modifications. USRC may add or subtract from the scope of
Contractor’s Contract Work by written modification to this Contract (“Contract Modification”)
which shall incorporate a change order (“Change Order”) prepared, as set forth below, by
USRC. Contract Modifications and Change Orders may only be issued in writing. Without such
written authorization from USRC, no course of conduct or dealings between the parties, no
express or implied acceptance of additions or changes to the Contract Work and no claim of
unjust enrichment of USRC shall be the basis for any Claim for an increase in the Contract
Amount or any extension of time for completion of the Contract Work as provided in Section
10.1 or Sections 3.4.and 3.5 of this Contract, respectively. Contract Modifications and Change
Orders may only be issued in a written notice given pursuant to Section 11.7. Contractor shall
promptly perform the Contract Work as modified.
4.2
Change Orders; Contract Price Adjustments.
Before issuing a Contract
Modification incorporating a Change Order, USRC shall prepare a draft Change Order and
forward it to Contractor. If Contractor contends that the Change Order results in a net increase in
Contractor’s cost of performing the Contract Work, within ten (10) calendar days after receipt of
the draft Change Order, Contractor shall provide USRC with a detailed estimate of the additional
cost. The Parties shall negotiate in good faith to agree on an equitable adjustment to Contractor’s
compensation. If the Parties do not agree on the amount of such adjustment at that time, USRC
shall nevertheless issue a Contract Modification which shall incorporate the Change Order issued
by USRC. Contractor shall comply with the Contract Modification and Change Order and any
disputes about the amount of adjustment shall be treated as disputes subject to Article 10 of this
Contract.
4.3
Differing Site Conditions.
If, during the course of Contract performance, the
Contractor observes or discovers physical conditions at the Job Site that the Contractor believes
are different in a material way from those that are indicated, described or shown on or in this
Contract, including the Exhibits thereto, Contractor shall notify USRC within ten (10) business
days after the condition or conditions is, or are, observed or discovered. USRC shall undertake a
review of the matter. If USRC determines that a modification of the Contract amount or the time
for completion of the Contract Work is merited, an equitable adjustment will be made by written
Change Order pursuant to Sections 4.1 and 4.2.
4.4
Stop Work Order. USRC may at any time, by notice to Contractor, require
Contractor to stop all or part of the performance of the Contract Work for a period of up to
ninety (90) days after notice to Contractor (“Stop Work Order”). Upon receipt of the Stop Work
Order, Contractor shall comply with its terms and take all reasonable steps to minimize the costs
applicable to the Contract Work or the portion of the Contract Work covered by the Stop Work
Order during the period of work stoppage. Within a period of ninety (90) days after Contractor’s
receipt of a Stop Work Order, or within any extension of that period to which USRC and
Contractor have agreed in writing, USRC shall either cancel the Stop Work Order or terminate
this Contract pursuant to Section 6.4 hereof. Contractor shall resume work upon cancellation or
expiration of any Stop Work Order. An equitable adjustment shall be made in the Schedule or in
the Contract Amount, or both, if the Stop Work Order causes an increase in the time required for
performance of the Contract Work or in the Contractor’s costs. The equitable adjustment shall
be made pursuant to a written Change Order issued in accordance with Sections 4.1 and 4.2
above.
ARTICLE 5
INVOICES AND FINAL PAYMENT
5.1
USRC will compensate the Contractor for services rendered in the performance of
the Contract Work in accordance with Exhibit E attached hereto and made a part hereof (the
“Contract Amount”). The compensation to be paid Contractor is complete and, except as
modified by a Contract modification issued pursuant to Article 4 hereof, no additional
compensation will be allowed.
5.2
Once a month, Contractor shall invoice USRC for its fees incurred during that
month. Each invoice shall include (i) a detailed statement of all services performed as part of the
Contract Work for that month; (ii) a comparison of the services scheduled to be performed with
those actually performed; (iii) a list of all subcontractors and major suppliers with the itemized
cost of their services detailed (if applicable); and (iv) Contractor’s certification that the services
for which payment is sought have been completed in accordance with this Contract, that the
Contractor has fully paid or otherwise made satisfaction for any work ordered by it and materials
furnished to it, and that none of those performing or furnishing such work has any claim, demand
or lien against USRC or its property through the date of the invoice. Subject to approval of the
Contract Work to date by USRC and provided that the information required to be submitted by
Contractor pursuant to this Section 5.2 has been submitted and approved, payment will be made
by USRC within forty-five (45) days following receipt of the applicable invoice.
5.3
Invoices. Contractor shall send all invoices to USRC in the manner specified in
Section 11.7, except that copies of invoices are not required to be forwarded to USRC’s counsel.
5.4
Final Payment. Final payment shall not be due from USRC until Contractor has
delivered to USRC (a) an affidavit that each and every service required to be performed as part
of the Contract Work has been fully and satisfactorily performed; and (b) a complete release of
all liens arising out of the performance of the Contract Work or receipts in full covering all labor,
materials and equipment for which a lien could be filed, or a bond satisfactory to USRC
indemnifying USRC against any lien. If any lien remains unsatisfied after all payments are
made, Contractor shall pay such lien on demand or refund to USRC all moneys that USRC may
be compelled to pay in discharging such lien, including all costs and reasonable attorneys’ fees.
Any payment due to Contractor hereunder shall be reduced by an amount up to one hundred
twenty percent (120%) of the amount of any lien arising out of or related to Contractor’s
performance under this Contract until such lien is removed as of record by payment or bonding.
Final payment shall be made by USRC only (i) upon a determination that the Contract
Work has been fully performed in accordance with the terms of this Contract and all Exhibits
thereto and has been accepted; (ii) upon receipt and acceptance by USRC of all warranties and
guarantees required by this Contract; and (iii) upon receipt by USRC of two (2) sets of as-built
drawings.
5.5
Contractor Errors or Omissions. Notwithstanding anything to the contrary
contained herein, no compensation shall be paid or claimed by Contractor for services required
to correct deficiencies attributable to errors or omissions of Contractor. Furthermore, if, within
one (1) year of final payment to Contractor pursuant to Section 5.4 hereof, USRC determines
that all or any portion of the Contract Work has not been completed in accordance with the terms
and conditions of this Contract, USRC shall notify the Contractor. The Contractor shall correct
the defective work promptly at its cost and expense. The corrected Contract Work shall then be
subject to an additional one (1) year period for correction of any deficiencies. If the Contractor
fails to correct the defective Contract Work after notification by USRC, USRC may cure the
deficiency and charge the costs thereof to the Contractor. The provisions of this Section 5.5 shall
survive the termination of this Contract.
5.6
USRC’s Right to Withhold Payment. Notwithstanding anything to the contrary
contained herein, USRC shall have the right to withhold from any payment due to Contractor
such sums as are reasonably necessary to protect USRC against any loss or damage that might
result from or be in any way connected to: the work of Contractor or its subcontractors; failure
by Contractor to perform its obligations hereunder; or claims filed against USRC relating to
Contractor’s services under this Contract. Any sums withheld by USRC as provided in this
Section 5.6 and subsequently determined by USRC to be due and owing to Contractor, shall be
paid by USRC to Contractor within three (3) business days of USRC’s determination.
ARTICLE 6
CONTRACT TERM AND TERMINATION
6.1
Contract Term. This Contract shall remain in full force and effect from the date
of its execution until (a) the date of Contractor’s completion of the Contract Work hereunder (the
“Completion Date”); or (b) termination of the Contract before the Completion Date pursuant to
the provisions of Sections 6.3 or 6.4. The period from the date on which this Contract is
executed to the earlier of (x) the date on which this Contract is terminated or (y) the Completion
Date, is referred to herein as the “Contract Term.”
6.2
Breach by Contractor. If Contractor breaches any obligation of this Contract,
USRC will notify Contractor of such breach in writing pursuant to Section 11.7 hereof.
Contractor will have fifteen (15) business days following receipt of the notice within which to
remedy the breach as set forth in USRC’s notice (the “Cure Period”). USRC, in its sole
discretion, may extend the Cure Period. Either (a) the failure by Contractor to remedy the breach
within the Cure Period or any extension thereof, or (b) a second breach by Contractor (even if
different in nature) before the Completion Date, shall constitute an “Event of Default” entitling
USRC to exercise any and all remedies available to it at law or in equity as well as those rights
set forth in Section 6.3 below. Upon the occurrence of an Event of Default, USRC, in its sole
discretion, may take whatever steps it deems necessary to correct, or have corrected, the
deficiencies caused by Contractor’s breach of this Contract and charge the costs thereof to
Contractor, who shall be liable for the full costs of USRC’s corrective action, including
reasonable overhead and profit. USRC may, in its sole discretion, set off any costs of corrective
action or losses due to the breach against any sums owed by USRC to Contractor.
6.3
Termination by USRC for Cause. Upon the occurrence of an Event of Default,
USRC shall have the right to terminate the Contract for cause upon three (3) business days’
notice. USRC’s right to terminate pursuant to this Section 6.3 shall be in addition to its rights
under Section 6.2 above. If USRC terminates this Contract for cause, Contractor shall be entitled
to recover any amounts due through the date of termination, less USRC’s costs of corrective
action and losses due to the breach as described in Section 6.2 hereof. Contractor shall not be
entitled to any other compensation in the event USRC terminates this Contract for cause.
6.4
Termination by USRC for Convenience. USRC may, at any time and for any
reason, upon ten (10) days’ written notice, terminate this Contract at USRC’s convenience. For
the avoidance of doubt, USRC may terminate the Contract during a Cure Period or extension
thereof. If USRC terminates this Contract for its convenience, Contractor shall be entitled to
recover any amounts due through the date of termination, plus its reasonable costs of
termination; provided, however, that no amounts shall be due for work performed by Contractor
unless such work has been accepted by USRC. If USRC terminates this Contract for its
convenience, Contractor shall not be entitled to any other compensation or consequential
damages, including, without limitation, lost profits, lost opportunity costs, home office overhead,
unabsorbed corporate overhead, impact damages or other similar remuneration.
6.5
Termination by Contractor. Contractor shall give prompt written notice to USRC
of either (a) a failure by USRC to pay the undisputed amount of an approved invoice by USRC
within forty-five (45) calendar days of receipt; or (b) a substantial breach by USRC of a material
obligation of USRC under this Contract. After receipt of such notice, USRC shall have fifteen
(15) calendar days to remedy that breach (“USRC Cure Period”). Contractor, in its sole
discretion, may extend the USRC Cure Period. Contractor shall have the right to terminate its
obligations pursuant to this Contract on three (3) business days’ notice if the conditions
identified in (a) or (b) of this Section 6.5 have not been resolved by the expiration of the USRC
Cure Period or any extension thereof. If Contractor terminates this Contract, Contractor shall be
entitled to recover any amounts due through the date of termination plus the reasonable cost of
recovering such amounts from USRC, if any. Contractor shall not be entitled to any other
compensation in the event Contractor terminates this Contract for cause.
6.6
Survival of Rights and Duties Following Termination. Termination of this
Contract shall discharge only those obligations that are executory by either Party on or after the
effective date of termination. Any right or duty of a Party based on either performance or a
breach of this Contract before the effective date of termination shall survive the termination.
ARTICLE 7
INSURANCE
7.1
Types of Insurance. Contractor shall maintain, at its sole cost and expense, the
Required Insurance Coverages set forth in Exhibit A attached to and made a part hereof. For the
avoidance of doubt, Contractor’s failure to comply with any of the requirements of Exhibit A
shall constitute a material breach of this Contract.
ARTICLE 8
RELEASE AND INDEMNIFICATION OF USRC
8.1
Release. Contractor hereby releases USRC from all claims for damage to
Contractor’s property, including property of any nature whatsoever of Contractor, its employees
or contractors.
8.2
Indemnification. In addition to any other indemnification obligation under this
Contract, including the Exhibits thereto, Contractor agrees to indemnify, defend and hold
harmless USRC from and against any claims for patent, copyright infringement, or other
intellectual property violation, or any loss related thereto, which arise from or are in any way
related to the Contract Work performed by Contractor.
ARTICLE 9
CONFIDENTIALITY AND OWNERSHIP OF DOCUMENTS
9.1
Confidentiality of Documents. All Documents prepared by or provided to
Contractor pursuant to this Contract are to be treated as confidential (“Confidential
Information”). Confidential Information is not to be disclosed to third parties without USRC’s
prior written approval and is to be delivered to USRC on request and in all events upon
completion of the Contract Work or earlier termination of this Contract pursuant to Article 6.
Contractor shall advise its employees, agents and subcontractors having access to Confidential
Information of this obligation of confidentiality and bind such employees, agents and
subcontractors to this same obligation. No articles, papers or treatises related to or in any way
associated with the Contract Work performed pursuant to this Contract shall be submitted for
publication without USRC’s prior written consent.
9.2
Ownership of Documents. All Documents prepared by Contractor pursuant to
this Contract are the property of USRC upon payment in full for services rendered in preparing
such Documents.
ARTICLE 10
DISPUTE RESOLUTION
10.1 Negotiation; Filing of Claims The Parties will attempt in good faith to resolve
any dispute, Claim or controversy arising out of or relating to this Contract or the breach,
termination, enforcement, interpretation or validity hereof, including this dispute resolution
provision (a “Dispute”) promptly by negotiation. Contractor must initiate a Claim by giving
notice to USRC within twenty (20) calendar days after the occurrence of the event giving rise to
the claim or within twenty (20) calendar days after Contractor becomes aware of the
circumstances giving rise to the Claim, whichever is later; provided, however, that acceptance of
final payment by the Contractor shall be deemed a waiver of any further Claims, except for those
which have previously be made in writing and are pending resolution.
10.2
Mediation.
(a)
If the Dispute is not resolved by negotiation, the Parties shall attempt in
good faith to resolve any Dispute promptly by confidential mediation under the then-current
Center for Public Resources Mediation Procedure before resorting to arbitration or litigation.
Each Party will bear its own fees and expenses for participating in the mediation (including fees
and expenses of its legal counsel). The Parties will share equally in the mediator’s fees and
expenses.
(b)
All offers, promises, conduct and statements, whether oral or written,
made in the course of the mediation by any of the Parties, their agents, employees, experts and
attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose,
including impeachment, in any arbitration or judicial proceeding involving the Parties, provided
that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or
non-discoverable as a result of its use in the mediation.
(c)
The pendency of a mediation shall not preclude a Party from seeking
provisional remedies from a court of appropriate jurisdiction, and the Parties agree not to defend
against any application for provisional relief on the ground that the mediation is pending.
(d)
Mediation sessions shall be conducted within the District of Columbia
unless USRC consents to a different location.
(e)
If the Dispute is not resolved within thirty (30) calendar days of the
initiation of the mediation procedure or if the other Party refuses to participate in a mediation, a
Party may initiate arbitration or judicial proceedings as provided in Sections 10.3 or 10.4 below.
10.3 Arbitration of Disputes involving $200,000.00 or less (excluding legal fees). If
the Dispute involves a Claim for a sum of money of Two Hundred Thousand Dollars
($200,000.00) or less (excluding legal fees related to the Dispute), the Dispute shall be submitted
to arbitration pursuant to this Section 10.3:
(a)
The arbitration proceeding, including the selection of an arbitrator, shall
be conducted pursuant to the Center for Public Resources Rules for Administered Arbitrations
then in effect. The Arbitration Tribunal shall consist of a sole arbitrator; provided that (i) each
Party shall be entitled to limited discovery as prescribed by the arbitrator and (ii) the arbitrator
may make interim awards and may award equitable and declaratory relief.
(b)
The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C.
§§ 1 et seq., and judgment upon the award rendered by the arbitrator may be entered by any court
having jurisdiction thereof. Unless USRC consents to a different location, the place of the
arbitration shall be within the District of Columbia.
(c)
The costs and expenses of the arbitration and their apportionment between
the Parties shall be determined by the arbitrator in his or her award or decision. Each Party shall
bear its own fees and expenses for participating in the arbitration (including the fees and
expenses of its legal counsel).
10.4 Litigation of All Other Disputes. Any Dispute other than a Dispute described in
Section 10.3 shall be subject to judicial resolution unless the Parties agree to refer the Dispute to
arbitration in accordance with Section 10.3.
(a)
The federal and state courts of the District of Columbia shall have
exclusive jurisdiction over disputes litigated pursuant to this Section 10.4.
(b)
Each Party, by execution and delivery hereof, irrevocably waives, to the
fullest extent permitted by Applicable Law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Contract. Each Party certifies that it has been
induced to enter into this Contract by, among other things, the mutual waivers and certifications
set forth in this Subsection 10.4(b).
ARTICLE 11
MISCELLANEOUS
11.1 Parties Bound. All the terms of this Contract shall apply to and be binding upon,
and inure to the benefit of, the successors and assigns of USRC and Contractor, except that this
Contract may not be assigned by Contractor without first obtaining the written consent of USRC.
11.2 Retention of Records. Contractor’s records relating to this Contract and the
performance of the Contract Work shall be kept in accordance with generally accepted
accounting principles, shall be retained by Contractor for a period of no less than five (5) years
after the end of the Contract Term and shall be available to USRC or the authorized
representatives of USRC for audit and review during normal business hours during such period.
11.3 Waiver and Modification. A waiver on the part of USRC or Contractor of the
breach of any term, provision or condition of this Contract shall not constitute a precedent or
bind either Party to a waiver of any other breach of the same or any other term, provision or
condition of this Contract. Except as provided in Article 4, this Contract may only be modified
by written agreement signed by both Parties.
11.4 Governing Law and Forum. This Contract is made pursuant to, and shall be
governed by the laws of the District of Columbia exclusive of any principles or rules of law that
would require or permit the application of any law of another jurisdiction.
11.5 Exculpatory Clause. No individual, director (or his/her designee), officer,
representative or employee of USRC shall have any liability for the obligations of USRC
hereunder. No individual, director, officer, shareholder, representative or employee of
Contractor shall have any liability for the obligations of Contractor hereunder.
11.6 Construction and Interpretation. This Contract and any modifications or
amendments hereto may be executed in one or more counterparts, each of which shall be an
original, but all of which together shall constitute one instrument. As used herein, except as the
context otherwise indicates, the singular shall include the plural and vice versa and words of any
gender shall include any other gender. The words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”. All references to Sections,
Subsections or Exhibits shall be to Sections, Subsections or Exhibits of this Contract unless
otherwise specified. The captions are inserted for convenience of reference, and are not intended
to define, limit or describe the scope or intent of this Contract.
11.7 Notices. Any notice that either Party is required to give or chooses to give
pursuant to this Contract shall be in writing and sent by prepaid overnight delivery service for
next business day delivery to the individuals at the addresses listed below. Notice shall be
deemed given when delivered by the overnight delivery service. Each Party shall also send
electronic copies of such notices to the individuals at the email addresses listed below.
Nzinga Baker
Vice President and Director
Finance and Administration
Union Station Redevelopment Corporation
10 G Street NE - Suite 504
Washington, D.C. 20002
(202) 222-0271
nbaker@usrcdc.com
with a copy (which shall not constitute notice to)
Marialuisa S. Gallozzi
Covington & Burling LLP
1201 Pennsylvania Avenue NW
Washington, D.C. 20004
(202) 662-5344
mgallozzi@cov.com
Contractor
[address]
[phone]
[e-mail]
with a copy (which shall not constitute notice to)
Contractor Counsel
[address]
[phone]
[e-mail]
11.8 Severability. Every nonmaterial provision, term, paragraph or part of this
Contract is severable from the others. If any provision, term, paragraph or part of this Contract is
construed or held to be void, invalid or unenforceable by order, decree or judgment of a court of
competent jurisdiction, the remaining provisions, terms, paragraphs and parts shall not be
affected thereby but shall remain in full force and effect.
11.9 Entire Agreement; Precedence of Addendum. This Contract (including the
Request for Proposals, Contractor’s Proposal, and Exhibit A) constitutes the entire understanding
and agreement of the Parties with respect to the Contract and the Contract Work. Exhibit A
attached to this Contract is an integral part hereof, in the same manner as if set forth in the body
of the Contract. This Contract supersedes all prior or contemporaneous communications,
representations or agreements, whether oral or written, relating to the services to be provided
under this Contract. In the event of any conflict between the Contractor’s Proposal and the
terms of this Contract, the Request for Proposals, or Exhibit A, the terms of this Contract, the
Request for Proposals, and Exhibit A shall control.
11.10 Survival of Obligations. Without limiting any right or obligation of a Party which
may survive the expiration or prior termination of this Contract pursuant to the terms hereof, all
obligations on the part of either Party to indemnify, and/or hold harmless the other Party shall
survive the expiration or prior termination of this Contract.
11.11 Relationship of the Parties. This Contract does not create the relationship of
principal and agent, partnership, joint venture or any association between USRC and Contractor
other than a contractual relationship.
11.12 Corporate Action. USRC and Contractor hereby represent and warrant to each
other that all necessary corporate action has been taken to enter into this Contract and that the
person signing this Contract on behalf of USRC and Contractor respectively, is duly authorized
to do so.
11.13 “Buy America”; Davis-Bacon Act. Contractor agrees to comply with the “Buy
American Act” and must ensure that there will be no funds expended in violation of 41
U.S.C.§§10a-10c as required by Section 412 of the Transportation, Housing, and Urban
Development, and Related Agencies Appropriation Act, 2009 (Division I of Public Law 111-8
(March 11, 2009). Contractor must also comply with the requirements of the Davis-Bacon Act
(40 U.S.C.A. §§ 276a to 276 a-5), the federal law that governs the minimum wage rates to be
paid to labors and mechanics on federal-aid projects.
11.14 Non-Discrimination. USRC and Contractor shall both abide by the provisions of
Executive Order 11246, as amended; Title VI of the Civil Rights Act of 1964, as amended (78
Stat. 252; 42 U.S.C.§§ 2000d et. seq.); Title V, Section 504 of the Rehabilitation Act of 1973, as
amended (87 Stat. 394; 29 U.S.C.§ 794); the Age Discrimination Act of 1975, as amended (89
Stat. 728; 42 U.S.C. §§ 6101 et seq.); and the D.C. Human Rights Act of 1977, effective
December 13, 1977 (D.C. Law 2-38, D.C. Official Code §§ 1401.01 et seq.). USRC and
Contractor shall both also abide by all other Federal, District of Columbia and local laws and
regulations prohibiting discrimination on the grounds of race, color, national origin, disability,
religion, sex or sexual orientation, in employment and in providing facilities and/or services to
the public as applicable. In advertising for employment, nothing shall be done which may
prevent persons covered by these laws from qualifying for employment.
11.15 Audit Requirements. Contractor will conduct, and agrees to require its
subcontractors to conduct, a single audit that meets OMB Circular A-133 standards, if the
Contractor, or any of its subcontractors, expend an aggregate of five hundred thousand dollars
($500,000.00) or more in Federal grants in a calendar year.
IN WITNESS WHEREOF, the Parties hereto have executed this Contract the day
and year first above written.
ATTEST:
UNION STATION REDEVELOPMENT
CORPORATION
By:__________________________________
Beverley K. Swaim-Staley
President & CEO
APPROVED AS TO FORM:
By:__________________________________
Marialuisa S. Gallozzi
Covington & Burling LLP
Date:_________________________________
ATTEST:
[CONTRACTOR]
By:__________________________________
Title:_________________________________
EXHIBIT A
INSURANCE OBLIGATIONS OF CONTRACTOR
1.
Required Insurance Coverages. For the protection and benefit of the USRC and
the Contractor, the Contractor shall procure and maintain insurance coverage of the types and in
the amounts required by law or specified in paragraphs 1.a. through 1.f. below, whichever
coverage is greater in amount or scope. Such coverage is referred to herein as the “Required
Insurance Coverages.” Contractor shall maintain the Required Insurance Coverages in full force
and effect at all times during the Contract Term or for such longer period as specified herein.
a.
Worker’s Compensation Insurance. Coverage for all employees employed
in connection with the Contract Work and with the Contractor’s other operations pertaining to
this Contract. Contractor agrees to comply at all times with the provisions of the Workers’
Compensation laws of the District.
b.
Employer’s Liability Insurance. Coverage of at least One Million Dollars
($1,000,000) per accident or disease.
c.
Commercial General Liability Insurance. Coverage of at least Two
Million Dollars ($2,000,000) per occurrence for a period of not less than two (2) years following
the date of final payment for [or completion of, if later] the Contract Work. The Commercial
General Liability Insurance Policy shall include, without limitation, appropriate endorsements
adding the following coverages:

Premises and Operations Liability;

Explosion, Collapse and Underground Damage Liability;

Railroad Liability;

Personal Injury Liability (with employee and contractual exclusions deleted);

Broad Form Property Damage Liability;

Independent Contractor’s Protective Liability; and

Completed Operations and Products Liability.
Any aggregate limit under the Contractor’s Commercial General Liability
Insurance shall, by endorsement, apply separately to the Contract Work.
d.
Comprehensive Automobile Liability Insurance. Coverage for bodily
injury and/or property damage of at least Two Million Dollars ($2,000,000) per person and Two
Million Dollars ($2,000,000) per occurrence. The Comprehensive Automobile Liability
Insurance shall cover the operation of all vehicles used in connection with performing the
Contract Work and shall be applicable to owned, hired and non-owned vehicles.
e.
All Risk Property Insurance. Coverage for the full replacement value of
personal property owned by Contractor that is used in connection with this Contract.
f.
Professional Liability Insurance. Coverage of at least Two Million
Dollars ($2,000,000) per occurrence and Two Million Dollars ($2,000,000) in the annual
aggregate for the acts, errors and omissions of the Contractor in performing professional services
pursuant to this Contract. If the Professional Liability Insurance is placed on a claims-made
basis, the retroactive date of coverage shall precede the inception date of this Contract and the
insurance will be maintained for a period of three (3) years after the end of the Contract Term;
Contractor may satisfy this requirement by procuring an extended reporting period of three (3)
years after the end of the Contract Term during which to report claims arising out of related to
Contractor’s acts, errors or omissions during the Contract Term.
2.
Additional Insured Endorsements.
a.
USRC as Additional Insured. The Contractor shall cause the Required
Insurance Coverages (other than the Workers’ Compensation Insurance and Professional
Liability Insurance) to include the USRC as an additional insured for claims or losses caused in
whole or in part by the Contractor’s negligent or intentional acts, errors or omissions during the
Contractor’s operations and completed operations.
b.
Contractor’s Insurance is Primary. The Required Insurance Coverages
shall be primary to and noncontributory with to any valid insurance issued or affording coverage
to USRC. If USRC has insurance that applies to the claim or loss, such other insurance shall
apply on an excess or contingent basis. The liability of the Contractor’s insurer(s) under any of
the Required Insurance Coverages shall not be reduced by the existence of any insurance issued
or maintained by USRC.
c.
Waiver of Subrogation. The Required Insurance shall include a waiver of
subrogation against USRC.
3.
Insurance Company Ratings. Contractor shall procure the Required Insurance
Coverages from insurance companies (a) authorized to do business in the District of Columbia
and rated A minus VII or better by the then-current edition of Best’s Key Rating Guide or (b)
otherwise approved by the USRC.
4.
Evidence of Required Insurance Coverages.
a.
Policies or Certificates to be Provided. The Contractor hereby agrees to
deliver to the USRC, within five (5) business days of execution of this Contract and before
commencing the Contract Work, certified copies of all insurance policies comprising the
Required Insurance Coverages. If USRC consents, Contractor may provide Certificates of
Insurance in form and substance satisfactory to the USRC, evidencing the Required Insurance
Coverages in lieu of the certified copies of all insurance policies comprising the Required
Insurance Coverages.
b.
Continuity following Expiration or Renewals. When any Required
Insurance Coverage shall expire or be renewed in the ordinary course, Contractor shall supply
the USRC with Certificates of Insurance and amendatory riders or endorsements that confirm the
continuation of all Required Insurance Coverages without any gap or lapse in coverage. .
c.
No Waiver by USRC. In no event shall any failure of the USRC to receive
certified copies or certificates of policies required under this Contract or to demand receipt of
such certified copies or certificates prior to the Contractor’s commencing the Contract Work be
construed as a waiver by the USRC of the Contractor’s obligations to procure and maintain the
Required Insurance Coverages. In no event shall the receipt and review by the USRC of any
copies of insurance policies or insurance certificates relieve the Contractor of any of the
Insurance Obligations of Contractor described in this Exhibit A.
d.
Procurement is a Separate Obligation. The obligation to procure and
maintain any insurance required by this Contract is a separate responsibility of the Contractor
and independent of the duty to furnish a certified copy or certificate of such insurance policies.
5.
Subcontractors and Sub-subcontractors.
The Contractor agrees to require or contractually obligate its Subcontractors and
Sub-subcontractors to:
a.
Comply with the insurance provisions required of the Contractor pursuant
to this Exhibit A (including the requirement to name USRC as an additional insured) unless
USRC, in its sole discretion, agrees to any request from the Contractor and/or a subcontractor or
sub-subcontractor to modify these requirements for a Subcontractor or Sub-subcontractors whose
Contract Work is of relatively small scope.
b.
Advise the Contractor promptly of any material changes or lapses of the
requisite insurance coverages. Contractor agrees to promptly advise the USRC of any such
notices Contractor receives from its Subcontractors and Sub-subcontractors.
6.
Lapse, Nonrenewal or Expiration of Insurance Coverage.
a.
No Material Changes. The Contractor shall not make material changes in
or allow the Required Insurance Coverages to lapse without the USRC’s prior written approval
of any such material change or lapse.
b.
Notice of Changes to USRC. All insurance policies comprising the
Required Insurance Coverage must be endorsed to contain a provision giving the USRC thirty
(30) days’ prior written notice by certified mail of any material alteration, cancellation,
nonrenewal or expiration of such policies. If an insurer does not agree to provide notice directly
to USRC; Contractor shall provide notice of any material alternation, cancellation, nonrenewal or
expiration of any such policies as soon as practicable pursuant to the Notice provisions and in the
manner specified in Section 11.7.
c.
Copies of Renewal/Replacement Policies to be Provided. If any renewal or
replacement policy, for whatever reason obtained or required, either is (a) written by an insurer
other than the insurer with which the coverage was previously placed, or (b) differs in any way
from the policy it replaces, the Contractor shall also furnish the USRC with a certified copy of
the renewal or replacement policy unless the USRC provides the Contractor with prior written
consent to submit only a Certificate of Insurance for any such policy. All renewal and
replacement policies shall be in form and substance satisfactory to the USRC and written by
insurers acceptable to the USRC.
7.
Payments made by the USRC. If either (a) a notice of cancellation is issued for
non-payment of premiums or any part thereof, or (b) Contractor fails to provide a certificate of
insurance as required by Paragraph 4(a) of this Exhibit A, USRC shall have the right, but not the
obligation, to pay the unpaid premium to the insurance company or to obtain the Required
Insurance Coverage and to deduct such premium payment from any sum that may be due or
become due to the Contractor, or to seek reimbursement for said payments from the Contractor.
Any sums paid by the USRC shall be due and payable immediately by the Contractor upon
notice from the USRC.
8.
Reservation of Rights. USRC, in its sole discretion, reserves the right to require
additional insurance coverages or to change the limits of insurance required under this Contract
as it deems necessary based on the nature and scope of the services to be provided by the
Contractor under this Contract.
9.
Insurance Does Not Limit Contractor Liability. The insurance provisions of this
Contract are not intended as and shall not be construed to limit the Contractor’s responsibilities
and liabilities pursuant to the Contract.
EXHIBIT B
Request for Proposals
EXHIBIT C
Contractor’s Proposal
EXHIBIT D
Scope of Work (“Contract Work”)
EXHIBIT E
Contractor’s Compensation
EXHIBIT F
Contract schedule